Citation Nr: 0720057
Decision Date: 07/05/07 Archive Date: 07/13/07
DOCKET NO. 04-05 945 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Chaplin, Counsel
INTRODUCTION
The appellant served on active duty from April 1968 to April
1970 and from September to November 1990.
This matter comes before the Board of Veterans' Appeals
(Board) from an April 2003 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi, that denied entitlement to service connection
for PTSD.
FINDING OF FACT
The preponderance of competent and probative medical evidence
establishes that the appellant does not meet the diagnostic
criteria for PTSD.
CONCLUSION OF LAW
The criteria for service connection for PTSD are not met. 38
U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304
(2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The appellant seeks entitlement to service connection for
PTSD. He contends that he was under pressure and stress
during his active service in Vietnam as a result of multiple
events in which he participated or witnessed. The appellant
has related his Military Occupational Specialty (MOS) as a
laundry specialist and that he was involved in combat mostly
through performing general duties as standing guard and
defending the perimeter of camp.
Service connection connotes many factors, but basically it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service. A determination of service
connection requires a finding of the existence of a current
disability and a determination of a relationship between that
disability and an injury or disease in service. See Pond v.
West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App.
247, 253 (1999); 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §
3.303(a).
Service connection may also be granted if the evidence shows
that the condition was observed during service or any
applicable presumption period and continuity of
symptomatology was demonstrated thereafter, and if the
evidence includes competent evidence relating the current
condition to that symptomatology. See Savage v. Gober, 10
Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R.
§ 4.125(a); a link, established by medical evidence, between
current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor
occurred. 38 C.F.R. 3.304(f); Cohen v. Brown, 10 Vet. App
128 (1997). If the evidence shows that the veteran did not
serve in combat during service, or if there is a
determination that the veteran engaged in combat but the
claimed stressor is not related to such combat, there must be
independent evidence to corroborate the veteran's statement
as to the occurrence of the claimed stressor. Doran v.
Brown, 6 Vet. App. 283, 289 (1994). The veteran's testimony,
by itself, cannot, as a matter of law, establish the
occurrence of a non-combat stressor. See Dizoglio v. Brown,
9 Vet. App. 163, 166 (1996). Further, an opinion by a mental
health professional based on a post-service examination of
the veteran cannot be used to establish the occurrence of a
stressor. Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996);
Cohen v. Brown, 10 Vet. App. 128 (1997).
Under the law currently in effect, a diagnosis of PTSD must
be rendered in accordance with 38 C.F.R. § 4.125(a), which
incorporates the provisions of the 4th Edition of the
Diagnostic and Statistical Manual of Mental Disorders (DSM-
IV). An amendment to 38 C.F.R. § 3.304(f), effective May 7,
2002, which pertains to evidence necessary to establish a
stressor based on personal assault, does not change the three
criteria noted above. See 67 Fed. Reg. 10330-10332 (March 7,
2002).
Service medical records are negative for any complaints,
findings or diagnosis of PTSD or other psychiatric
disability. At the time of his separation examination in
January 1970 he denied having any psychiatric symptoms and
the clinical psychiatric evaluation was normal. The Board
must find that the service records provide evidence against
this claim.
The appellant's personnel file shows that he served in
Vietnam as a laundry specialist. He did not receive any
medals or citations that show participation in combat
activity. In cases when a determination is made that the
veteran did not "engage in combat with the enemy," or the
claimed stressor is not related to combat, the veteran's lay
testimony alone will not be enough to establish the
occurrence of the alleged stressor. Moreau v. Brown, 9 Vet.
App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166
(1996). In these cases, the record must contain
corroborative evidence that substantiates or verifies the
veteran's testimony or statements as to the occurrence of the
claimed stressor. West (Carlton) v. Brown, 7 Vet. App. 70,
76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).
The appellant has described several stressors during his tour
in Vietnam such as being under gunfire when he first arrived
in Vietnam, also at night, and doing guard duty from time to
time under constant attack, with continuing bombing and
firing. These situations caused him extreme pressure and
stress and he lived in constant fear for his life. No
additional specific relevant information has been
forthcoming.
In lay statements received in February and March 2003, the
appellant's spouse described her observations of the
appellant's behavior after he returned from Vietnam.
Private medical treatment records are negative for PTSD.
Although on the appellant's substantive appeal, he stated
that he was receiving Social Security Administration (SSA)
benefits for "the same medical problems", SSA records
pertain to other medical disabilities and are negative for
any complaints, findings or diagnosis of PTSD. The Board
finds that the SSA determination, failing to indicate PTSD,
provides some evidence against this claim.
VA outpatient treatment records show that the appellant was
seen for depression for which medication was prescribed. He
was afforded a VA psychiatric evaluation for PTSD in July
2004; however, a diagnosis of PTSD was not entered. The
diagnosis was anxiety disorder, not otherwise specified. In
August 2004, he was seen for a PTSD evaluation in a VA
Treatment Recovery Program (TRP) clinic. The appellant
reported that he was in Vietnam for one year entering at Bien
Hoa and being deployed to Cam Ranh Bay. He was also sent to
Nha Trang where he worked in a field laundry and was required
to stand occasionally security posts. He claimed he had shot
at the enemy but wasn't sure if he hit anyone. A fellow
soldier in his unit was injured by being shot in the shoulder
and was medically evacuated out of country. The appellant's
primary problem was having been in Vietnam. He did not want
to be there and he was scared. He remembered that Bien Hoa
was mortared as his aircraft was landing.
The pertinent impressions were anxiety disorder, not
otherwise specified and adjustment disorder secondary to
retirement. PTSD was not indicated, providing more evidence
against this claim.
After the screening assessment, his case was presented to a
TRP team which found that the appellant did not meet the
criteria for PTSD. The impression was adjustment disorder
with anxiety.
The Board observes that there is no evidence that the
appellant was in combat and no evidence of a verifiable
stressor that he experienced during service.
In any event, the Board finds that the first element required
to establish service connection for PTSD has not been met,
inasmuch as the preponderance of the competent and probative
medical evidence of record establishes that the appellant
does not meet the diagnostic criteria for PTSD. The VA and
private medical records fail to diagnose the appellant with
PTSD. The Board accords great probative value to the VA
psychiatric evaluation in August 2004, which was specifically
obtained for the purpose of resolving the question of whether
the appellant met the criteria for PTSD. The examiner's
conclusion was based on a review of the medical records, the
appellant's history, and an examination of the appellant.
The assessment was also reviewed by a TRP team which agreed
that the appellant did not meet the criteria for PTSD. As
such, the Board finds that such evidence is persuasive on the
question of diagnosis, and hence, dispositive of the issue on
appeal.
The Board has carefully considered the appellant's statements
and the lay statements of his wife in adjudicating the issue
on appeal. Each is certainly competent, as a lay person, to
report that as to which he has personal knowledge. See Layno
v. Brown, 6 Vet. App. 465, 470 (1994). They are not,
however, competent to offer a medical opinion as to cause or
etiology of the claimed disability, as there is no evidence
of record that either has specialized medical knowledge. See
Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layperson is
generally not capable of opinion on matter requiring medical
knowledge), aff'd sub nom. Routen v. West, 142 F.3d 1434
(Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998);
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The lay
statements are not competent medical evidence as to a nexus
between the appellant's claimed current disorder of PTSD and
active service, or as to claimed continuity of symptomatology
demonstrated after service.
In this case, the Board finds the post-service medical
record, as a whole, provides highly probative evidence
against a finding that the veteran has PTSD. As a result, on
this basis, further stressor development would be moot, and
the claim must be denied.
As the preponderance of the competent and probative medical
evidence medical evidence establishes that the appellant does
not meet the diagnostic criteria for PTSD, the Board finds
that a critical element necessary to establish service
connection for such disorder is lacking, and that further
analysis into the remaining criteria of 38 C.F.R. § 3.304(f),
such as stressor verification, simply is not necessary. The
claim on appeal must be denied.
In reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine. However,
as the preponderance of the evidence is against the
appellant's claim, that doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 53-56 (1990).
duty to notify and to assist
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159
(2006). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Pelegrini v. Principi, 18
Vet. App. 112 (2004).
Here, the RO sent correspondence in February 2003, June 2003,
August 2003, April 2004, and June 2004; a rating decision in
April 2003; and a statement of the case in January 2004.
These documents discussed specific evidence, the particular
legal requirements applicable to the claims, the evidence
considered, the pertinent laws and regulations, and the
reasons for the decisions. VA made all efforts to notify and
to assist the appellant with regard to the evidence obtained,
the evidence needed, the responsibilities of the parties in
obtaining the evidence, and the general notice of the need
for any evidence in the appellant's possession. The Board
finds that any defect with regard to the timing or content of
the notice to the appellant is harmless because of the
thorough and informative notices provided throughout the
adjudication and because the appellant had a meaningful
opportunity to participate effectively in the processing of
the claims with an adjudication of the claims by the RO
subsequent to receipt of the required notice. There has been
no prejudice to the appellant, and any defect in the timing
or content of the notices has not affected the fairness of
the adjudication. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (2006)
(specifically declining to address harmless error doctrine);
see also Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Thus, VA has satisfied its duty to notify the appellant and
had satisfied that duty prior to the final adjudication in a
supplemental statement of the case issued in November 2004.
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant, available
evidence. Thus, the Board finds that VA has satisfied both
the notice and duty to assist provisions of the law.
The Board has considered whether another VA examination
should be undertaken in this case, beyond the one cited
above. However, as service and post-service medical records
provide no basis to grant this claim, and in fact provide
evidence against this claim, the Board finds no basis for
another VA examination or medical opinion to be obtained.
See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Simply
stated, the standards of McLendon are not met in this case.
ORDER
Entitlement to service connection for PTSD is denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs